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2015 DIGILAW 532 (UTT)

Gopal Dutt v. State of Uttarakhand

2015-11-16

ALOK SINGH

body2015
JUDGMENT : Alok Singh, J. Present petition is preferred assailing the order dated 12.03.2013, passed by learned Judicial Magistrate, Vikas Nagar, Dehradun, whereby learned Magistrate was pleased to reject the final report submitted by the Investigating Agency and was further pleased to issue process against the accused/petitioner, herein, as well as judgment and order dated 23.06.2015 passed by Revisional Court whereby revision, filed by the accused challenging the summoning order, was dismissed. 2. Undisputedly, complainant/respondent no. 2, herein, has filed civil suit being O.S. No. 65 of 2010, Sri Chandram Rajguru vs. Gajendra Prasad Bhatt and others, seeking permanent prohibitory injunction against the defendants (wherein present petitioner was one of the defendant) directing the defendants not to interfere in the possession of the plaintiff/complainant over the property in question; complainant/respondent herein has also lodged an F.I.R. with P.S. Sahaspur District Dehradun registered as Case Crime No. 232 of 2010 under Section 379, 427, 188 IPC against the defendants including the petitioner on 10.11.2010 saying accused including the petitioner have cut, removed and destroyed the crop from the agriculture field of the complainant; suit for permanent prohibitory injunction being O.S. No. 65 of 2010 was dismissed by the Trial Court vide judgment and decree dated 24.12.2014 having observed that plaintiff/complainant could not prove his title and possession over the property in question; one revenue suit for declaration under Section 229-B U.P.Z.A. & L.R. Act was filed by the father of the petitioner herein as well as by Gajendra Prasad against the complainant as well as Smt. Pushpa Devi, Rekha Pawar and Neeraj Mittal pertaining to the property in question, which is pending disposal as yet before the Assistant Collector, 1st Class, Vikas Nagar, Dehradun; after the investigation, Police has filed final report in favour of the accused saying no offence can be said to have been made out against the accused punishable under Sections 379, 427, 188 IPC; against the final report, so submitted by the Police, complainant/respondent no. 2, herein, has filed protest petition; on the protest petition, learned Magistrate was pleased to pass impugned order dated 12.03.2013 summoning the accused and Criminal Revision No. 91 of 2013 arising out of impugned summoning order dated 12.03.2013 was dismissed by the Revisional Court vide judgment dated 23.06.2015, hence, accused/petitioner, herein, has invoked jurisdiction of this Court under Section 482 Code of Criminal Procedure. 3. I have heard Mr. 3. I have heard Mr. D.C.S. Rawat, learned counsel appearing for the accused/petitioner, Mr. V.S. Pal, learned AGA for the State/respondent no. 1 and Mr. Rajat Mittal, learned counsel appearing for the respondent no. 2/complainant and have carefully perused the record. 4. First of all, bare perusal of the impugned summoning order dated 12.03.2013 would reveal that Magistrate has not observed for what offence he has decided to issue process against the accused/petitioner, herein. The operative portion of the order reads as under: “ Final Report No. 19 of 2011 submitted by the Investigating Officer is hereby rejected; objection stands disposed of accordingly; Office is directed to register this case as State Case and to issue summon against the accused fixing 20.04.2013.” 5. As observed hereinbefore, summoning order does not disclose for what offence learned Magistrate has decided to issue summons. 6. Since, complaint was filed under Section 379, 427 and 188 IPC, therefore, according to Mr. Rajat Mittal, learned counsel appearing for the complainant/respondent no. 2, summon should be deemed to have been issued for the offences punishable under Sections 188, 378, 425 IPC. 7. Sections 188, 378 & 425 IPC are being reproduced herein to appreciate the arguments advanced by Mr. Rajat Mittal, learned counsel appearing for the complaint/respondent no. 2. “188. Disobedience to order duly promulgated by public servant.-- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management. disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both: and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. Explanation.-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. 378. Theft.--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.-A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.- A moving effected by the same act which effects the severance may be a theft. Explanation 3.- A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.- The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. 425. Mischief.- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.” 8. Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.” 8. A bare reading of Section 188 IPC would reveal that for disobedience of order duly promulgated by public servant, offender shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees or with both. The sine-quo-non to invoke Section 188 IPC, there should be an order duly promulgated by a public servant which is said to be violated/disobeyed. In the present case, neither the Magistrate nor the Revisional Court has pointed out which order duly promulgated by the public servant was disobeyed by the accused-petitioner. Therefore, offence punishable under Section 188 IPC cannot be said to have been made out against the petitioner. 9. Section 378 IPC defines theft while punishment thereof is provided under Section 379 IPC. The simple and unambiguous language of Section 378 IPC would demonstrate that to constitute an offence of theft property should have been moved from the possession of the complainant with dishonest intention and without the consent of the complainant who was in possession of the property actually moved. 10. In view of the admitted fact as narrated hereinbefore that in a civil suit being O.S. No. 65 of 2010, complainant/respondent no. 2 was not found owner in possession of the property. Therefore, cutting of the crop from the property in question cannot be said removal of the crop from the possession of the complainant. 11. Yet, there is another aspect of the matter i.e. learned Magistrate has not observed that complainant was in possession over the property in question and crop was removed from his possession. Learned Magistrate without observing that crop was removed from the possession of the complainant has issued impugned summoning order for the offence punishable under Section 379 IPC which cannot be said to be legal and on the face of it, seems to be outcome of non-application of mind. 12. Section 425 IPC defines “mischief”, while punishment for causing mischief/loss to the property amounting Rs. 50/- and upwards is provided under Section 427 IPC. The sine-quo-non to constitute an offence of mischief is that property either belonging to the public or to the complainant should be damaged or destroyed or diminished its value or utility. 12. Section 425 IPC defines “mischief”, while punishment for causing mischief/loss to the property amounting Rs. 50/- and upwards is provided under Section 427 IPC. The sine-quo-non to constitute an offence of mischief is that property either belonging to the public or to the complainant should be damaged or destroyed or diminished its value or utility. As observed hereinbefore, complainant was not found owner in possession of the property in question by the competent Civil Court. Therefore, it was not the property of the complainant which was said to be cut away by the accused, therefore, offence permissible under Section 427 IPC is also not made out. 13. In the present case, while submitting the final report, learned Investigating Officer has observed that complainant could not prove that crop was sown by him, therefore, no offence can be said to have been made out. The report submitted by the Investigating Officer was rejected by the learned Magistrate without caring and looking into the ingredients of Section 425, 378 & 188 IPC. 14. Hon’ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (2013) 4 SCC 505 has held as under :- “Summoning of the accused in a criminal case is a serious matter. Hence the criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In the present case, in the summoning order the Magistrate has not recorded his satisfaction about a prima facie case as against Respondents 2 to 7 and the role played by them.” 15. In view of the dictum of Hon’ble Apex Court, the summoning order of the Magistrate must reflect that he has applied his mind to the facts of the case and law applicable thereto. Magistrate must record his satisfaction about the existence of prima-facie case on the basis of discussion of complaint case and evidence produced on the record. 16. In view of the dictum of Hon’ble Apex Court, the summoning order of the Magistrate must reflect that he has applied his mind to the facts of the case and law applicable thereto. Magistrate must record his satisfaction about the existence of prima-facie case on the basis of discussion of complaint case and evidence produced on the record. 16. Time and again, Hon’ble Apex Court and this Court have observed that learned Magistrate should not issue the summoning order lightly and before issuing the process, learned Magistrate must record his prima facie satisfaction that for such and such reason, prima facie offence seems to have been made out. In the present case, no such prima facie satisfaction has been recorded. Therefore, impugned summoning order does not sustain in the eyes of law. 17. In the result, petition succeeds and is hereby allowed. Impugned orders dated 12.03.2013 and 23.06.2015 are hereby quashed.